Does border security have a right to search your iPod, laptop or USB sticks? This has increasingly become a central question and some, like the EFF, are arguing that such searches are unconstitutional.

One of the ideas behind ACTA (Anti-Counterfeiting Trade Agreement) is the idea that you can have your iPod, laptop, or any other digital device searched, confiscated and destroyed based on suspicion alone. It might not come as a surprise that the country that proposed this kind of activity is also practicing it on their own citizens – but it has digital rights activists deeply concerned regardless.

EFF Senior Staff Attorney Lee Tien testified at a senate hearing on such search and seizures. There is one instance where a search without a warrant is permitted under US law. This type of searching without a warrant is permitted at airports for any possible dangerous items that could threaten the safety of passengers. The kind of things being searched have nothing to do with physical objects – but rather the ones and zeros on a digital device. The kind of content that can be retrieved on a laptop can range from something as simple as a spider solitaire high score or banking information left in a browsers web history.

Those who support such search and seizure might suggest that such private information would be carefully protected under suspicionless searches. Perhaps the JetBlue privacy breach of 2002-2005 where 5 million peoples personal information was probably illegally handed over to a contractor of the Department of Defense might have a few proponents to such search and seizures thinking twice for a moment. It was a case the ACLU watched but it was thrown out because the passengers couldn’t prove actual damage occurred according to a judge. One hopes that next time, such information won’t be damaging – much like what could happen if British managers start handing out personal information in a bid to increase profits.

Clearly, private information isn’t what all is targeted today even though identity theft has become a major problem. ACTA would allow countries to conduct suspicionless searches for the purpose of preventing the movement of pirated content which includes seizure and destruction of affected property. Of course, in one case in Germany, the police simply used such seizures to better the IT department situation.

So what is at stake in this particular case? Plenty just from reading the first few paragraphs in Lee’s testimony. A few highlights:

What is your deepest secret? Do you have any embarrassing health conditions? Have you ever had a family crisis? What are the details of your finances? Do you have trade secrets or confidential information related to your work? The answers to questions like these are often contained on laptops and similar devices. Any reasonable person would say that Americans have a legitimate expectation of privacy in such information. Indeed, in this April appearance before the full Committee, Department of Homeland Security (“DHS”) Secretary Chrtoff agreed that “there are absolutely privacy concerns” in searching laptop computers at the border.

This protection is not limited to the contents of a person’s writings or communications; it extends to his or her identity and the identity of his or her correspondents. In the modern context, it includes knowledge about a person’s interests, the websites he or she reads, and the electronic files that he or she downloads. “Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to unpopular individuals from retaliation — and their ideas from suppression — at the hand of an intolerant society.” McIntyre v. Ohio Elections Comm ‘n, 514 U.S. 334, 357 (1995) (citation omitted). Thus, both freedom of expression and freedom of assocation are at stake as well, because arbitrary government access to these devices will chill speech as people question whether what they say and think (and to whom) is proper.

On April 21st, the Ninth Circuit held in United States v. Arnold that the Fourth Amendment does not require government agents to have reasonable suspicion before searching laptops or other digital devices at the border, including international airports. Customs and Border Patrol are likely to use the opinion to argue that almost every property search at the border is constitutionally acceptable.

EFF filed an amicus brief in the case, arguing that laptop searches are so revealing and invasive that the Fourth Amendment requires agents to have some reasonable suspicion to justify the intrusion. Not only are laptops capable of storing vast amounts of information, the information tends to be of the most personal sort, including letters, finances, diaries, photos, and web surfing histories. Prior border search cases distinguished between “routine” suspicionless searches and invasive “non-routine” searches that require reasonable suspicion. Our amicus brief and the lower court opinion relied on these cases to say that the government must also have some cause to search laptops. The Ninth Circuit panel rejected our argument that the privacy invasion resulting from searching computers is qualitatively different from, and requires higher suspicion than, searching luggage or other physical items.

The opinion is almost certainly wrong to classify laptop searches as no different from other property searches. Fourth Amendment law constrains police from conducting arbitrary searches, implements respect for social privacy norms, and seeks to maintain traditional privacy rights in the face of technological changes. This Arnold opinion fails to protect travelers in these traditional Fourth Amendment ways.

The EFF also cites a judges opinion (page 4) from a case known as United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) where Chief Justice Rehnquist wrote, “Balanced against the sovereign’s interests at the border are the Fourth Amendment rights of respondent… [who] was entitled to be free from unreasonable search and seizure.” Using this citation, the EFF argues that border searches should be reasonable. Among other things, the EFF argues that a search of a laptop without suspicion is unreasonable because personal information on such a device can be extremely revealing about an individual.

Obviously, at a time when trade agreements between countries involve the idea that someone can suspect someone of copyright infringement as a basis to seize content, the border digital searches couldn’t become more of an important debate – and the United States isn’t alone. Currently in Canada, such questions are being raised during a time when copyright legislation has been tabled. It’s a legislation that has become a hot button debate. Conveniently enough, just yesterday, we reported just three days ago about how the, what is known as, Canadian DMCA seems to have implemented an ACTA backdoor which would allow something like ACTA to take place in Canada.

In other words, such searches have become an international question and not just for people living within the United States. One must wonder, if the idea of searching someone’s laptop doesn’t fly in the United States, could Canada be pressured even more to conduct such searches as a way to circumvent any, to proponents of such searches, unfavorable decisions?